They're Not 'Orphan Works', They're 'Hostage Works'

from the time-to-liberate-them dept

Words matter -- just think of the number of times flame wars have broken out in Techdirt's comments over whether you can "steal" music or films. But one phrase that nobody really questions is "orphan work". And yet, as Lydia Pallas Loren
points out in a brilliant paper, this is a loaded term with a very particular agenda:

In the metaphor of the romantic author, the works he creates are his children, born of his labor and genius. He is given rights to control, and thus protect, his children. Calling works for which the copyright owner cannot be located "orphans" pulls on that metaphor and triggers the concerns any humane person would have toward abandoned children. These orphans have suffered the tragic loss of their parent. These are works whose parents have been lost or killed. We reflexively begin to believe that orphan works need the kind of protection that society provides to abandoned children.

Although that orphan metaphor sounds innocent enough, Loren believes that it is one of the reasons why it has proved so difficult to pass orphan works legislation:

The perceived evils of the world are multifold and include Dickensian images: bleak orphanages, barren workhouses, and street gangs assembled by Artful Dodger of Oliver Twist, where the unfortunate children are put to work for commercial entities exploiting whatever commercial life is present in the child. These orphan exploiters fail to invest in or care for the children properly, underfeed them, and yet usurp the work-value of the orphan child. This implied narrative of the potential abuse of orphans has impeded the passage of orphan works legislation.

It's a brilliant explanation, and leads Loren to suggest an alternative, provocative metaphor: not "orphan works", but "hostage works":

When viewed as a "hostage work problem" it becomes clear that these works do not need foster parents or protection against inappropriate exploitation -- the end result of an orphan metaphor. Nor do these works need new owners -- the end result of a metaphor of abandoned or neglected property. What these works need are "special forces" that can free them from the constraints placed on them by the combination of the regulatory effects of copyright and the lack of a locatable owner who can grant permission to avoid the consequences of the regulation.

Pursuing that metaphor, she suggests that "special forces" who liberate those hostages should be granted immunity from legal action by any owners of those works that eventually turn up, provided the former meet two criteria:

First, the entity must not be negligent in designating a work as a hostage work or in its approach to correcting status information and removing digital access to a work inaccurately (albeit non-negligently) identified as a hostage. Why negligence is the right standard and what might constitute negligence is explored more fully below. Second, in order to gain special forces immunity from monetary liability the entity should be required to provide an open access copy of the work with embedded hostage freeing information related to that work.

That's clever, because it ensures that the "special forces" who liberate the hostage works can't simply imprison them again, but must set them free in the form of open access copies.

It's a wonderful solution employing a thought-provoking metaphor, and I urge you to read the full paper. It provides a full exploration of the legal details of how it might work -- if only people could look beyond the misleading perspective of "orphan works", and see them as "hostage works" instead.